Journal of Law and Health, Volume 7: Pages 107-130, 1992.
Medicine and technology have advanced to a point where procedures that were never before possible are now routine and common. With further advancement, procedures we have not even contemplated may become commonplace. Cases such as Curran v. Bosze recognize the difficulty in applying present legal standards to situations and procedures that have been developed and are being developed. The doctrine of substituted judgment, developed in the 19th Century, is clearly not applicable in many of these new situations where minors and incompetents are involved. The law needs a new standard which allows certain procedures to be performed when truly equitable and necessary, but which prevents the abuse of those who cannot truly protect themselves. The standards which presently exist are not sufficient and permit the utilitarian use of minors and incompetents to benefit those who are competent. If this abuse is to be prevented, courts must recognize the fiction of the substituted judgment standard as it now being applied and adopt a new standard which protects the rights of incompetents and treats them as persons with value and dignity under the law.
LYNN E. LEBIT
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